Motion for Leave in INNOVATIVE COVERINGS OF AMERICA, LLC VS MANNINGTON MILLS, INC.| Trellis.Law

On June 07, 2019 a Motion,Ex Parte was filed involving a dispute between Ica Group, Innovative Coverings Of America, Llc, and Mannington Mills, Inc., for Contract & Indebtedness in the District Court of Miami-Dade County.

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Filing # 121010987 E-Filed 02/08/2021 03:40:14 PM

IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 2019-17282-CA-32
INNOVATIVE COVERINGS OF AMERICA,
LLC, d/b/a ICA GROUP,

Plaintiff,

MANNINGTON MILLS, INC.,

Defendant.
_____________________________________/

MOTION FOR LEAVE TO AMEND ANSWER AND
AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT
Defendant, MANNINGTON MILLS, INC., pursuant to Rule 1.190(a), Florida Rules of

Civil Procedure, seeks leave to amend its answer and affirmative defenses to the Amended

Complaint filed by Plaintiff, INNOVATIVE COVERINGS OF AMERICA, LLC d/b/a ICA

GROUP. In support, Defendant states as follows:

1. On June 11, 2019, Plaintiff filed its Amended Complaint.

2. On August 19, 2019, Defendant filed its answer to the Amended Complaint.

3. Defendant seeks to amend its answer to add affirmative defenses based upon

waiver, estoppel, the Florida UCC, and accord and satisfaction and unclean hands as revealed by

discovery. A copy of the proposed amended answer and affirmative defenses is attached as Exhibit

4. Florida Rule of Civil Procedure 1.190(a) provides, in pertinent part:

A party may amend a pleading once as a matter of course at
any time before a responsive pleading is served or, if the pleading is
one to which no responsive pleading is permitted and the action has
not been placed on the trial calendar, may so amend it at any time
within 20 days after it is served. Otherwise a party may amend a
pleading only by leave of court or by written consent of the adverse
party. Leave of court shall be given freely when justice so requires.
A party shall plead in response to an amended pleading within 10
days after service of the amended pleading unless the court
otherwise orders.
Id. It is well settled that Florida courts have broad discretion to grant leave to amend pleadings

and routinely grant such relief. Fixel v. Rosenthal & Rosenthal, 842 So. 2d 204, 208 n. 3 (Fla. 3d

DCA 2003); Wackenhut Protective Sys., Inc. v. Key Biscayne Commodore Club Condo. I, Inc.,

350 So. 2d 1150, 1152 (Fla. 3d DCA 1977).

5. Further, under Florida Rule of Civil Procedure 1.190(a), leave to amend is greatly

favored and all doubts should be resolved in favor of allowing amendments so that cases may be

resolved on their merits. Yun Enters., Ltd. v. Graziani, 840 So. 2d 420, 423 (Fla. 5th DCA 2003);

Kala Investments, Inc. v. Sklar, 538 So. 2d 909 (Fla. 3d DCA 1989), Sunday v. Balari, 542 So. 2d

485 (Fla. 3d DCA 1989); Zieja v. Metropolitan Dade County, 508 So. 2d 354 (Fla. 3d DCA 1986).

When justice requires, amendments to pleadings are authorized and encouraged in order to reach

the merits of the case. Kirkland v. State, Dept. of Health, 424 So. 2d 925, 927 (Fla. 1st DCA 1983).

The purpose of this policy is to ensure that each case is tried on its real facts. Garrett v. Oak Hall

Club, 118 So. 2d 633, 635 (Fla. 1960).

6. Leave to amend pleadings should not be denied unless the privilege has been

abused, there is prejudice to the opposing party, or amendment would be futile. Yun Enters., 840

So. 2d at 423; Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132, 1135 (Fla. 5th

DCA 1998).

7. Defendant submits it has not abused the privilege to amend pleadings because this

motion is its first request.

8. Defendant further submits that this motion is not being served for the purpose of

delay, but rather to simplify and address the issues before the Court. As evidenced by the proposed

amended answer, amendment would not be futile.

9. Additionally, Defendant submits the granting of this motion would serve the

interest of justice.
10. Last, Defendant submits that the granting of this motion will not cause any

prejudice to the parties to this litigation as the matter is not set for trial and Plaintiff has taken only

one deposition.

WHEREFORE, Defendant, MANNINGTON MILLS, INC., respectfully requests the entry

of an order granting its motion for leave to amend, deeming its amended answer and affirmative

defenses to the Amended Complaint filed as the date of the order awarding such further relief deed

just and proper

Dated: February 8, 2021

SAUL EWING ARNSTEIN & LEHR LLP
Counsel for Defendant
701 Brickell Avenue, 17th Floor
Miami, Florida 33131
Telephone: 305-428-4500
Facsimile: 305-374-4744
E-Mail: hilda.piloto@saul.com

By: /s/Hilda Piloto
Hilda Piloto
Florida Bar No. 0154120
CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this

8th day of February 2021 via the Court’s E-Filing Portal on:

Danielle Cohen Higgins
2030 S. Douglas Road, Suite 202
Coral Gables, Florida 33134

/s/ Hilda Piloto
Hilda Piloto
EXHIBIT 1
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 2019-17282-CA-32

INNOVATIVE COVERINGS OF AMERICA,
LLC, d/b/a ICA GROUP,

Plaintiff,

MANNINGTON MILLS, INC.,

Defendant.
_____________________________________/

DEFENDANT’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES
Defendant, MANNINGTON MILLS, INC., as and for its amended answer and

affirmative defenses to the complaint for civil damages filed by Plaintiff, INNOVATIVE

COVERINGS OF AMERICA, LLC d/b/a ICA GROUP states:

PARTIES, JURISDICTION AND VENUE

1. The allegations in paragraph 1 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant is without knowledge as to the

allegations in paragraph 1 and demands strict proof thereof.

2. Admitted.

3. Admitted.

4. Admitted.

5. Defendant admits that Plaintiff purports to seek damages that exceed $15,000, but

denies that Plaintiff is entitled to such relief.

6. Admitted.
CASE NO. 2019-17282-CA-32

FACTUAL BACKGROUND

7. Admitted.

8. Defendant admits that on or about February 2, 2013, Plaintiff completed a written

credit application. The remainder of the allegations in paragraph 8 are a legal conclusion, thus

no response is required. To the extent a response is required, Defendant denies same. Defendant

further states that the terms of the credit application speak for themselves and that the parties’

relationship is regarding the purchase/sale of the Amtico teak flooring and other related products

is governed by the General Terms and Conditions for the Sale of Flooring Products.

9. Denied.

10. The allegations in paragraph 10 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies failing to timely and adequately

supply an order. Defendant is without knowledge as to the remainder of the allegations in

paragraph 10 and demands strict proof thereof.

11. The allegations in paragraph 11 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies a failure to adequately supply

an order. Defendant is without knowledge as to the remainder of the allegations in paragraph 11

and demands strict proof thereof.

12. The allegations in paragraph 12 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies delayered shipment of order and

lack of customer support. Defendant is without knowledge as to the remainder of the allegations

in paragraph 12 and demands strict proof thereof.

13. The allegations in paragraph 13 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies any shipping errors. Defendant

is without knowledge as to the remainder of the allegations in paragraph 13 and demands strict

proof thereof.

14. The allegations in paragraph 14 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies any mishaps. Defendant is

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without knowledge as to the remainder of the allegations in paragraph 14 and demands strict

proof thereof.

15. The allegations in paragraph 15 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies any shipment errors. Defendant

is without knowledge as to the remainder of the allegations in paragraph 15 and demands strict

proof thereof.

16. The allegations in paragraph 16 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies that it mishandled 40% of the

business agreements between Plaintiff and Defendant the past year. Defendant is without

knowledge as to the remainder of the allegations in paragraph 16 of the complaint and demands

strict proof thereof.

17. The allegations in paragraph 17 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies any inept business practices.

Defendant is without knowledge as to the remainder of the allegations in paragraph 17 and

demands strict proof thereof.

18. The allegations in paragraph 18 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant is without knowledge as to the

allegations in paragraph 18 and demands strict proof thereof.

19. The allegations in paragraph 19 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant is without knowledge as to the

allegations in paragraph 19 and demands strict proof thereof.

20. The allegations in paragraph 20 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies that there was mishandling of

shipment orders. Defendant is without knowledge as to the remainder of the allegations in

paragraph 20 and demands strict proof thereof.

21. The allegations in paragraph 21 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies there was business errors.

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Defendant is without knowledge as to the remainder of the allegations in paragraph 21 and

demands strict proof thereof.

22. Denied.

23. The allegations in paragraph 23 are not directed to Defendant, thus no response is

required. To the extent a response is required, Defendant denies that there was delay and

defective shipments and lack of ability to maintain proper accounts. Defendant is without

knowledge as to the remainder of the allegations in paragraph 23 and demands strict proof

thereof.

24. Denied.

COUNT I: BREACH OF CONTRACT
25. Defendant incorporates and realleges its responses to paragraph 1 through 24 as if

fully set forth herein.

26. The allegations in paragraph 26 are a legal conclusion, thus no response is

required. To the extent a response is required, Defendant admits that Plaintiff purchased

products from Defendant.

27. Denied.

28. Denied.

AFFIRMATIVE DEFENSES

First Affirmative Defense

As and for its first affirmative defense, Defendant states that the complaint must be

dismissed for failure to state a cause of action. Plaintiff is bound to the terms and conditions set

forth in the General Terms and Conditions for the Sale of Flooring Products and has failed to

admit the existence of that agreement and/or base is claims on the General Terms and Conditions

for the Sale of Flooring Products.

Second Affirmative Defense

As and for its second affirmative defense, Defendant states that Plaintiff’s claims are

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barred for failure to state a cause of action. Specifically, Plaintiff’s claims are barred by the

General Terms and Conditions for the Sale of Flooring Products which provide that shipping

and delivery dates are approximate.

Third Affirmative Defense

As and for its third affirmative defense, Defendant states that Plaintiff’s claims for

damages are barred by the General Terms and Conditions for the Sale of Flooring Products

which provide for a limitation of damages and specific notice requirements regarding allegedly

defective products.

Fourth Affirmative Defense

As and for its fourth affirmative defense, Defendant states that Plaintiff’s claims are

barred for failure to state a cause of action. Specifically, Plaintiff’s claims are barred by the

General Terms and Conditions for the Sale of Flooring Products which provide that in no event

shall Defendant by liable for any special, consequently, incidental, indirect, punitive or other

exemplary damages or costs of litigation, including but not limited to attorney’s fees and costs.

Fifth Affirmative Defense

As and for its fifth affirmative defense, Defendant states that Plaintiff’s claims are

barred for failure to state a cause of action. To the extent that Plaintiff asserts claims regarding

sales prior to June 10, 2018, those claims are barred by the General Terms and Conditions for the

Sale of Flooring Products which provide that except as may be provided in the applicable

Product warranty, any cause of action that Plaintiff may have against Defendant shall be brought

within 1 year after the cause of action accrues, failing which Plaintiff shall be deemed to have

waived its rights relating thereto.

Sixth Affirmative Defense

As and for its sixth affirmative defense, Defendant states that Plaintiff’s claims are

barred by the doctrine of waiver. To the extent that Plaintiff asserts claims regarding sales prior

to June 10, 2018, those claims were waived. The General Terms and Conditions for the Sale of

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Flooring Products provide that except as may be provided in the applicable Product warranty,

any cause of action that Plaintiff may have against Defendant shall be brought within 1 year

after the cause of action accrues, failing which Plaintiff shall be deemed to have waived its

rights relating thereto.

Seventh Affirmative Defense

As and for itsseventh affirmative defense, Defendant states that Plaintiff’s claims are

barred by for failure to comply with the notice provisions in the General Terms and Conditions

for the Sale of Flooring Products. The General Terms and Conditions provide that all notices

and other communications where are required or may be given pursuant to the terms of the

agreement shall in writing and shall be delivered to the addresses set forth on the first page of

the specific terms as follows: (i) by hand, (ii)by certified mail, postage prepaid, return receipt

requested or (iii) by overnight courier.

Eighth Affirmative Defense

As and for its eighth affirmative defense, Defendant states that Plaintiff’s claims are

brought in an improper venue. The General Terms and Conditions for the Sale of Flooring

Products which govern the parties’ relationship and the instant claim provide that the venue for

any action arising out the terms of the agreement is the state and federal courts located in the

State of New Jersey.

Ninth Affirmative Defense

As and for its ninth affirmative defense, Defendant states that Plaintiff’s claims are

barred as Plaintiff has failed to comply with conditions precedent to the bringing of an action.

The General Terms and Conditions provide that all notices and other communications where are

required or may be given pursuant to the terms of the agreement shall in writing and shall be

delivered to the addresses set forth on the first page of the specific terms as follows: (i) by hand,

(ii) by certified mail, postage prepaid, return receipt requested or (iii) by overnight courier.

Tenth Affirmative Defense

As and for its tenth affirmative defense, Defendant states that Plaintiff’s claims are

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barred as Plaintiff failed to issue timely and full payment for its orders.

Eleventh Affirmative Defense

As and for its eleventh affirmative defense, Defendant states that to the extent Plaintiff’s

claims are based upon an alleged defective product, such claims are subject to the warranty

provisions set forth the General Terms and Conditions for the Sale of Flooring Products.

Twelfth Affirmative Defense

As and for its twelfth affirmative defense, Defendant states that to the extent Plaintiff’s

claims are based upon an alleged defective product, such claims fail under Section 672.602 Fla.

Stat. in that Plaintiff, as buyer, failed to properly reject said goods.

Thirteenth Affirmative Defense

As and for its thirteenth affirmative defense, Defendant states that to the extent Plaintiff

is awarded damages, Defendant is entitled to a set-off or credit for all sums due to Defendant

arising from Plaintiff’s failure to fully issue payment for its orders.

Fourteenth Affirmative Defense

As and for its fourteenth affirmative defense, Defendant states that to the extent Plaintiff

alleges the delivery of defective product by Defendant, Plaintiff failed to mitigate its damages by

timely notifying Defendant of the alleged defect and/or requesting additional product from

Defendant or a third party seller of Amtico teak flooring and other related products.

Fifteenth Affirmative Defense

As and for its fifteenth affirmative defense, Defendant states that Plaintiff waived any

claim for damages by accepting replacement product and/or additional product for each and

every time there was an alleged shortage of delivery and/or accepting a credit for any alleged

undelivered product.

Sixteenth Affirmative Defense

As and for its sixteenth affirmative defense, Defendant states that Plaintiff’s claims are

barred by the doctrine of unclean hands. Plaintiff attempted to continue to place orders for

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flooring even though it had failed to pay the cost associated with such orders and had a past due

account.

Seventeenth Affirmative Defense

As and for its seventeenth affirmative defense, Defendant states that Plaintiff’s claims are

barred by Section 672.605, Fla. Stat. in that Plaintiff waived any claim based upon an alleged

defect when it failed to timely and properly set forth defect and allow Defendant a reasonable

time to cure.

Eighteenth Affirmative Defense

As and for its eighteenth affirmative defense, Defendant states that Plaintiff’s claims are

barred by Section 672.606, Fla. Stat. in that Plaintiff accepted all goods delivered by Plaintiff.

Nineteenth Affirmative Defense

As and for its nineteenth affirmative defense, Defendant states that Plaintiff’s claims are

barred under Section 672.607, Fla. Stat. in that Plaintiff accepted all goods delivered by Plaintiff,

failed to reject same, and is obligated to pay for all goods delivered..

Twentieth Affirmative Defense

As and for its twentieth affirmative defense, Defendant states that Plaintiff’s claims are

barred under Section 672.703, Fla. Stat. in that Plaintiff failed to make payment when due and as

such Defendant was permitted to withhold delivery.

Twenty-first Affirmative Defense

As and for its twenty-first affirmative defense, Defendant states that Plaintiff’s claims are

barred by the doctrine of accord and satisfaction in that all product that Plaintiff paid for was

delivered and any missing product was credited to Plaintiff’s account.

Twenty-second Affirmative Defense

As and for its twenty-second affirmative defense, Defendant states that Plaintiff’s claims

are barred by the doctrine of estoppel in that Plaintiff continued placing orders, accepting

delivery, accepting cure, and/or accepting credit over the course of five years.

Defendant specifically reserves its right to amend and/or add additional affirmative

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defenses as discovery progresses.

WHEREFORE, Defendant, MANNINGTON MILLS, INC., respectfully requests the

entry of an order dismissing the complaint for civil damages filed by Plaintiff, INNOVATIVE

COVERINGS OF AMERICA, LLC d/b/a ICA GROUP and awarding such further relief deemed

just and proper.

Dated: February 9, 2021

SAUL EWING ARNSTEIN & LEHR LLP
Counsel for Defendant
200 S. Biscayne Blvd., Suite 3600
Miami, Florida 33131
Telephone: 305-428-4500
Facsimile: 305-374-4744
E-Mail: hilda.piloto@saul.com

By: /s/Hilda Piloto
Hilda Piloto
Florida Bar No. 0154120

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CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the foregoing was served this

_______ day of _______________, 2021 via the Court’s E-Filing Portal on:

Danielle Cohen Higgins
2030 S. Douglas Road, Suite 202
Coral Gables, Florida 33134

/s/ Hilda Piloto
Hilda Piloto

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Document Filed Date

February 08, 2021

Case Filing Date

June 07, 2019

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Motion,Ex Parte: INNOVATIVE COVERINGS OF AMERICA, LLC VS MANNINGTON MILLS, INC.

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